Karnataka High Court
Bheemanna vs Mamathashri And Anr on 24 November, 2022
1 MFA No.200191/2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF NOVEMBER, 2022
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE ANIL B. KATTI
MISCELLANEOUS FIRST APPEAL No.200191/2019 (FC)
BETWEEN:
Bheemanna S/o Chandrappa
Age: 39 Years, Occ: Traffic Police
R/o KEB Ramanna House, Ram Nagar
IB Road, Raichur-584 140
... Appellant
(By Sri B.K. Hiremath, Advocate)
AND:
1. Mamathashri W/o Bheemanna
Age: 29 years, Occ: Household
R/o C/o Jayamma Peon
Govt. High School
At Post: Hemmur village
Tq. Deodurga, Dist. Raichur-584 129
2. Krishna S/o Lachmanna
Age: 42 Years, Occ: LIC Agent
R/o C/o Jayamma Peon
Govt. High School
2 MFA No.200191/2019
At Post: Hemmur village
Tq. Deodurga, Dist. Raichur-584 129
... Respondents
(By Sri Basavaraj R. Math, Advocate for R1;
R2 served)
This Miscellaneous First Appeal is filed under Section
19(1) of the Family Courts Act, praying to set aside the
judgment and decree passed by Prl. Judge, Family Court at
Raichur in M.C.No.41/2015 dated 10.10.2018 and dissolve
the marriage of the petitioner with respondent dated
17.04.2008 and pass a decree of divorce, in the interest of
justice.
This appeal is coming on for hearing, this day,
K.S.Mudagal J., delivered the following:
JUDGMENT
Heard.
2. "Whether the trial court was justified in dismissing the petition of the appellant against the 1 st respondent for decree of dissolution of marriage?" is the question involved in this case.
3 MFA No.200191/2019
3. The marriage of the appellant and the 1st respondent was solemnized on 17.04.2008 at Bandegudda Seetamma Tanda, Deodurga Taluk, Dist. Raichur. The parties are Hindus and governed by Hindu Marriage Act, 1955. Out of the said wedlock, a daughter by name Kusuma, a son by name Akul were born on 02.04.2009 and 31.05.2012 respectively.
4. At the time of the marriage, 1st respondent had completed D.Ed. course at Yeramurs, Raichur district. After the marriage, she joined B.A. course at Deodurga. 2nd respondent is the husband of the sister of 1st respondent. 2nd respondent and his wife were residing in Yeramurs village in Deodurga Taluk. 1 st respondent continued her studies staying in their house.
5. The appellant filed M.C.No.41/2015 before the Family Court, Raichur against the respondents under Sections 13(1)(i) and 13(1)(i-a) of Hindu 4 MFA No.200191/2019 Marriage Act, 1955 (for short, 'the H.M. Act') claiming that after the birth of the first child, the 1st respondent is living in adultery with 2nd respondent. He further contended that 1st respondent has subjected him to cruelty by such adulterous act and by filing a criminal case against him in Crime No.113/2012 of Deodurga Police Station. He alleged that she was nagging wife and when he went to meet the child in her parental house, 2nd respondent assaulted him. She has failed to discharge her marital duties at the behest of the 2 nd respondent and deprived him of his marital rights.
6. 2nd respondent did not appear before the trial court and contest the matter. 1st respondent alone contested the matter denying the allegations of adultery, cruelty and all other acts alleged by the appellant. She claimed that the appellant himself has subjected her to cruelty by making disgraceful allegations of infidelity and denying the paternity of 5 MFA No.200191/2019 the child. Since he imputed infidelity and cruelty, she was forced to file the complaint against him before the police. She contended that it was the appellant himself who avoided her joining him and failed to discharge his duties as a husband and the father. She also contended that realising his mistakes, he himself in the Panchayat tendered the apology and despite that he has filed false case. Hence, she sought for dismissal of the petition.
7. In support of his case, the petitioner got himself examined as P.W.1 and got marked Exs.P.1 to
7. 1st respondent was examined as R.W.1. Her cousin brother was examined as R.W.2. Exs.R.1 to 6 were marked on her behalf.
8. The trial court on hearing the parties, by the impugned judgment and decree dismissed the 6 MFA No.200191/2019 petition on the ground that the appellant has failed to prove the allegations of adultery and cruelty.
9. Reiterating the grounds of the appeal, Sri B.K. Hiremath, learned counsel for the appellant submits that infidelity could have been proved only by way of DNA test of 2nd respondent and the second child and such application was unjustly rejected by the trial court. Admittedly, in the criminal complaint filed by the 1st respondent alleging dowry harassment, police filed 'B' report. Therefore, the trial court should have accepted the grounds of adultery and cruelty.
10. Per contra, Sri Basavaraj R. Math, learned counsel for the 1st respondent submits that the evidence on record clearly shows that the appellant was making malicious and reckless allegations disgracing his wife and child. He further submits that the application of the appellant before the trial court 7 MFA No.200191/2019 for subjecting 2nd respondent and the child to DNA test was rejected by the trial court and he unsuccessfully challenged that order before this court. The order of this court attained finality. Therefore, it is not open to re-agitate the same point again. He further submits that the appellant in the Panchayat admitted his misdeeds and assured to take his wife and children back. Producing the document - Ex.R.2, before the Police and using his office as Police Constable got 'B' report filed in the criminal case. The trial court in the light of the evidence on record and recording the legal position, was justified in dismissing the petition.
11. It is settled position of law that when the appellant makes the allegations of infidelity and disputes the paternity of the child, the burden is on him to prove such allegations, otherwise the said allegations themselves amount to cruelty to wife. 8 MFA No.200191/2019 Admittedly, 2nd respondent was none else but the husband of the sister of 1st respondent. She continued her studies staying in the house of the said sister and 2nd respondent. Upto 2015 he neither made such allegations of infidelity nor denied the paternity of the second child.
12. Ex.R.2 is the agreement said to have been executed by appellant and his father in the Panchayat. It is the contention of the 1st respondent that the appellant was a tormentor and harassed her. Therefore, the panchayat was convened on 29.08.2012 to settle the matter. In the panchayat, admitting his misdeeds and assuring to look after her well in future, he executed Ex.R-2. The contents of Ex.R2 are to the effect that the appellant admitted that he subjected 1st respondent to physical and mental cruelty and has repented for the same and he assured to take care of his wife and children in future. 9 MFA No.200191/2019 When the document was confronted to him, he says that his signature was forcibly taken on the same. He does not deny the signature of his father on the document nor the convening of the panchayat. He himself was a Police Constable. He has not filed any complaint against anybody alleging that his signature was taken on Ex.R-2 under coercion. Therefore, the Trial Court was justified in relying on the said document. The said evidence was further corroborated by the evidence of RW-1 and RW-2.
13. So far as the ground of adultery and paternity of the second child, the heavy burden was on the appellant to prove those allegations. Section 112 of the Indian Evidence Act has conferred conclusive presumption regarding the paternity of the child which is born during the subsistence of the marriage. Admittedly, the second child was born during the subsistence of the marriage. Therefore, 10 MFA No.200191/2019 the burden was on the appellant to prove that at the relevant time he had no access to his wife. Except alleging that the child is born out of the adulteress relationship between respondent Nos.1 and 2, absolutely no evidence was adduced.
14. As rightly pointed out by the learned counsel for respondent No.1, the application of the appellant for DNA test/paternity test was rejected by the Trial Court and upheld by this Court in Writ Petition No.205304/2016 (GM-FC). That order attained finality. Therefore, it is not open to the appellant again to urge the same ground. The view of this Court with regard to paternity of the child and DNA test is supported by the judgment of the Hon'ble Supreme court in Ashok Kumar vs. Raj Gupta and Others1. Moreover such evidence is only an opinion evidence and not conclusive evidence. 1 (2022) 1 SCC 20 11 MFA No.200191/2019
15. So far as the filing of false complaint, no doubt the 1st respondent filed complaint against the appellant as per FIR Ex.P-4 alleging that the appellant subjected her to physical and mental cruelty in connection with his demand for dowry. That complaint was filed on 22.07.2012 against the appellant, his father and one Nagappa. Ex.R-2 was executed on 29.08.2012 i.e., one month after the complaint, whereunder the appellant admitted he subjecting the 1st respondent to cruelty. The final/'B' report was filed on 08.02.2013. That itself speaks in volume. Coupled with that, Ex.R-2 shows that the parties settled the matter much prior to the 'B' report. Since the matter was settled and having regard to appellant's position in police department, the possibility of parties giving statements as shown in Ex.P-6 to save the marital life is probable. Therefore, the said 'B' report in no way advances the case of the 12 MFA No.200191/2019 Appellant to hold that she filed a false complaint, thereby subjected him to cruelty.
16. Hon'ble Supreme Court in Rajesh Yadav & Anr. Etc. vs. State of U.P.2 has held that a final report of the Investigating Officer is merely an opinion of the Investigating Officer on the materials collected by him. It was further held that the Final Report itself cannot be termed as a substantive piece of evidence being nothing but a collective opinion of the Investigating Officer. Therefore, it cannot be held that 'B' summary report relied upon by the appellant is the proof of innocence of the accused or acquittal in his favour.
17. Under the above said facts and circumstances, there are no grounds to hold that the Trial Court committed any error in appreciating the 2 2022 LiveLaw (SC) 137 13 MFA No.200191/2019 evidence and the law while rejecting the petition. Hence, the appeal is dismissed with costs.
Sd/-
JUDGE Sd/-
JUDGE BL/swk